Workman v. Curran

• Decision Date: 17 March 1879
• Citation: 89 Pa. 226
• Parties: Workman <I>versus</I> Curran.
• Court: Pennsylvania Supreme Court

89 Pa. 226

Workman versus Curran.

Supreme Court of Pennsylvania.

February 24, 1879.

March 17, 1879.

February 24th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 133 C. Stuart Patterson and George W. Biddle, for plaintiff in error.—The court should have directed a verdict for defendant, because twenty-one years had not elapsed between the 9th of February 1852, the date of the entry of the final judgment in the case of Workman v. Roberts, and the 30th of January 1873, the date of the erection of the obstruction complained of, and because pending that suit the prescription could not run in favor of plaintiff. The title to an easement can be gained by prescription only where there has been for twenty-one years an actual, adverse, continuous, uninterrupted user under a claim of right. A prescriptive title can always be rebutted by proof of circumstances, tending to show that no grant could have been or probably was made, or that the owner of the servient tenement did not acquiesce: Washburn on Easements 111; Goddard's Law of Easements 90, 110; Cooper v. Smith, 9 S. & R. 32; Strickler v. Todd, 10 Id. 63; Hoy v. Sterrett, 2 Watts 330; Butz v. Ihrie, 1 Rawle 218; Garrett v. Jackson, 8 Harris 335; Okeson v. Patterson, 5 Casey 26; Pierce v. Cloud, 6 Wright 113; Worrall v. Rhoades, 2 Whart. 428; Esling v. Williams, 10 Barr 126; Jessup v. Loucks, 5 P. F. Smith 361; Fishing Co. v. Carter, 11 Id. 21; Biddle v. Ash, 2 Ashm. 211.

And title by prescription will be defeated, if the owner of the servient tenement resists or opposes the user, especially if his resistance is manifested by proceedings at law.

The maxim is "Ita quod, nec per vim, nec clam, nec precario:" Washburne on Easements 112. "The word, `vim,' means contention of any kind, as, that the enjoyment has been during a period of litigation about the right claimed * * * if the user has been in this sense not peaceably enjoyed, no easement can be thereby acquired:" Goddard's Law of Easements 124; Eaton v. The Waterworks, 17 Q. B. 267, 269; Livett v. Wilson, 3 L. J. [C. P.] 186; Solomon v. Vintners' Co., 4 Hurst. & N. 602; Stillman v. White Rock Co., 3 Wood. & M. 549; Bealey v. Shaw, 6 East 216.

So also, the presumption of payment of a debt is conclusively rebutted by proof of pendency of prior legal proceedings for the recovery of the debt, though those prior proceedings were not pressed to judgment: McCullough v. Montgomery, 7 S. & R. 28; Summerville v. Holliday, 1 Watts 518.

Facts being established their sufficiency to rebut a presumption of law is for the court, not for the jury: Delany v. Robinson, 2 Whart. 503; Reed v. Reed, 10 Wright 243.

In this case, the plaintiff had always kept the alley, which is the locus in quo, open for the use of his tenants in the court. How then could the defendant in error's user thereof be so injurious to the plaintiff in error, as to call upon him to resist it?

No title by prescription could therefore arise, in favor of the defendant in error: Washburne on Easements 89; Donnell v. Clark, 19 Me. 174; Thomas v. Marshfield, 13 Pick. 240; Cooper v. Smith, 9 S. & R. 33.

W Channing Nevin, for defendant in error.

Mr. Justice STERRETT delivered the opinion of the court, March 17th 1879.

It is admitted that the right of way, which is the subject of the present contention, is the same that was in controversy in the first action of trespass; and the cardinal question in this case is whether the pendency of that suit was sufficient to repel the presumption of a grant which otherwise would arise from the long continued use and enjoyment of the way by the defendant in error.

By the verdict and judgment in that case it was conclusively settled that those under whom she claims had no right of way in 1833, when the first suit was brought, and it is not claimed that any has been acquired since, unless it be by an uninterrupted use and enjoyment for over twenty-one years. There is no pretence of right acquired in any other manner; nor can any claim of right be substantiated on that ground even, unless at least a portion of the period during which the first action was pending be included in the computation. The present suit was brought in less than twenty-one years after the first was determined, and hence no presumption of a grant could arise from the use and enjoyment of the way during that intervening period. It therefore becomes material to determine whether the use by the defendant in error and those under whom she claims could be ripening into a right during the pendency of the first suit, from 1833 until February 9th 1852, when it was finally determined by the judgment of this court. What then was the effect of the pending action on the respective rights of the parties?

In this state we have no statute on the subject of private ways, except the Act of April 25th 1850, which prohibits their acquisition through unimproved woodland; and hence it is necessary to resort to the common law, the principles of which have been recognised as cases from time to time called for their application, but the precise point now under consideration does not appear to have arisen in any of our reported cases.

In Garrett v. Jackson, 8 Harris 331, it is said by Chief Justice BLACK, that "where one...